| Dillenbeck v Shovelton |
| 2014 NY Slip Op 01370 [114 AD3d 1125] |
| February 27, 2014 |
| Appellate Division, Third Department |
| Jessica Dillenbeck, Respondent, v Robert Shovelton,Appellant. |
—[*1] Robert Abdella, Gloversville, for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (J. Sise, J.), entered March 1,2013 in Montgomery County, which denied defendant's motion for summary judgmentdismissing the complaint.
Upon returning from work on the morning of February 7, 2011, plaintiff steppedonto the porch of her apartment building and an area of the wooden floorboardscollapsed, causing her right leg to fall through the resulting opening in the porch surface.The initial collapse did not cause injury to plaintiff. However, upon extricating her rightleg from the opening with the use of her left knee and right hand and attempting toproceed forward towards the doorway, the toe of plaintiff's right shoe caught a portion ofthe broken floorboard that was still attached to the deck, causing her to fall into the frontdoor to the apartment and injure her shoulder. Plaintiff thereafter commenced thisnegligence action against defendant, her landlord and the owner of the premises, torecover damages for her injuries. Following joinder of issue and discovery, defendantmoved for summary judgment dismissing the complaint. Supreme Court denied themotion, and defendant appeals.
"[D]efendant, as the movant for summary judgment, bore the initial burden ofestablishing, as a matter of law, that he maintained the property in a reasonably safecondition and did not have actual or constructive notice of the allegedly dangerouscondition" (Vincent vLandi, 101 AD3d 1565, 1566 [2012]; see Beckerleg v Tractor Supply Co., 107 AD3d 1208, 1209[2013]). Here, defendant submitted an affidavit stating that the porch flooring appearedin sound [*2]structural condition and that, during hisnumerous visits to the premises in the months prior to the incident, the floorboards neverexhibited any weakness, movement or other signs indicating a problem with theirintegrity. He further averred that there were no previous accidents or mishaps associatedwith the front porch floor during the 15 years that he owned and leased out the premises,nor had he received any complaints about the condition of the porch flooring or itsintegrity prior to this incident. Defendant also proffered plaintiff's own depositiontestimony that she had repeatedly used the front porch during the four-month periodimmediately prior to her accident and never noticed anything dangerous or defectiveabout the condition of the floorboards. This proof was sufficient to shift the burden toplaintiff to establish the existence of issues of fact requiring a trial (see Timmins v Benjamin, 77AD3d 1254, 1254-1255 [2010]; Raczes v Horne, 68 AD3d 1521, 1522 [2009]; Reid v Schalmont SchoolDist., 50 AD3d 1323, 1324-1325 [2008]).
On the issue of notice, plaintiff submitted an affidavit from a tenant living at thepremises at the time of the accident, who stated that he had complained to defendantabout the condition of the porch on three separate occasions prior to plaintiff's fall. Morespecifically, this individual averred that he had informed defendant that the porchfloorboards were rotting, unsafe and would bend under his weight and that, in reply toone of his complaints, defendant acknowledged the problems associated with the frontporch flooring and stated, "I'll get to it." Although this tenant's affidavit is patentlyinconsistent with plaintiff's deposition testimony regarding the appearance and conditionof the porch flooring, as well as defendant's assertion that he had not received anycomplaints concerning the floor, a court may not assess credibility on a summaryjudgment motion "unless it clearly appears that the issues are not genuine, but feigned"(Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; see Asabor v Archdiocese ofN.Y., 102 AD3d 524, 527 [2013]; Conciatori v Port Auth. of N.Y. & N.J., 46 AD3d 501, 503[2007]; Rifenburgh v Wilczek, 294 AD2d 653, 655 [2002]; compare Valenti v Exxon MobilCorp., 50 AD3d 1382, 1384 [2008]). As Supreme Court properly concluded, nosuch finding can be made here.
Moreover, factual issues exist as to proximate cause. As for defendant's argumentthat the claimed defects in the porch floorboards merely furnished the condition for theoccurrence of plaintiff's accident but was not one of its causes, a jury could reasonablyconclude that defendant's alleged negligence indeed "put in motion the agency by whichthe injuries were inflicted" (Benaquista v Municipal Hous. Auth. of City ofSchenectady, 212 AD2d 860, 861 [1995] [internal quotation marks and citationomitted]; accord Lockhart v Adirondack Tr. Lines, 289 AD2d 686, 690 [2001];compare Ortiz v Jimtion Food Corp., 274 AD2d 508 [2000]; Button vRainbow Prods. & Servs., 234 AD2d 664, 665 [1996]). Nor do we find that, as amatter of law, plaintiff's conduct in attempting to step over the opening created by thebroken floorboards upon extricating her right leg therefrom constitutes "interveningconduct [that] was extraordinary under the circumstances, not foreseeable in the normalcourse of events, or independent of or far removed from [defendant's] conduct" (Nash v Fitzgerald, 14 AD3d850, 851 [2005] [internal quotation marks and citations omitted]). Plaintiff testifiedthat she believed she could successfully step over the broken floorboards and resultingopening and, although it may have been possible for her to have instead placed her footto the side of the opening after removing her leg from it, this simply is not a case "wherethe plaintiff recognized the danger and chose to disregard it, thus rendering [her] conductthe sole proximate cause" of her injuries (Skibinski v Salvation Army, 307 AD2d427, 428 [2003]; accord Neisselv Rensselaer Polytechnic Inst., 54 AD3d 446, 452 [2008], lv denied 11NY3d 716 [2009]; Nash v Fitzgerald, 14 AD3d at 852). Rather, any suchnegligence on the part of plaintiff amounts only to comparative negligence not [*3]rising to the level of a superceding cause (see Alexander v St. Mary'sInst., 78 AD3d 1475, 1476 [2010]; Page v State of New York, 72 AD3d 1456, 1459 [2010];Nash v Fitzgerald, 14 AD3d at 852; Skibinski v Salvation Army, 307AD2d at 428; Mesick v State of New York, 118 AD2d 214, 218 [1986], lvdenied 68 NY2d 611 [1986]).
Defendant's remaining contention, that the complaint should have been dismissed forfailure to state a cause of action, has been reviewed and found to be lacking in merit.
Stein, Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.